02 September 2008Immediately after the commencement of the Constitution of India, Section 497 IPC was assailed on the ground that it goes against the spirit of equality embodied in the Constitution.

In 1951, one Mr Yusuf Abdul Aziz, charged with adultery, contended before the Bombay High Court that Section 497 IPC is unconstitutional as it, in contravention of Articles 14 and 15 of the Constitution6, operates unequally between a man and a woman by making only the former responsible for adultery. It, thereby, he argued, discriminates in favour of women and against men only on the ground of sex.

Recalling the historical background of Section 497 and the then prevailing social conditions and the sexual mores oppressive to women, and the unequal status of women, the High Court of Bombay upheld the constitutional validity of the provision. Chagla, C.J., observed:

"What led to this discrimination in this country is not the fact that women had a sex different from that of men, but that women in this country were so situated that special legislation was required in order to protect them, and it was from this point of view that one finds in Section 497 a position in law which takes a sympathetic and charitable view of the weakness of women in this country."7 The Court also opined that the alleged discrimination in favour of women was saved by the provisions of Article 15(3) of the Constitution which permits the State to make "any special provision for women and children".

Yusuf Abdul, on appeal to the Supreme Court8 argued that Section 497, by assuming that the offence of adultery could only be committed by a man and mandating a court that the adulteress wife be not punished even as an abettor, offended the spirit of equality enshrined in Articles 14 and 15 of the Constitution. Such an immunity assured to the adulteress wife (even) for her willing participation in the adulterous sexual activity, it was argued, did amount to a sort of licence to her to commit and abet the offence of adultery.

Vivian Bose, J., speaking for the Constitutional Bench (comprising M.C. Mahajan, C.J., Mukherjea, S.R. Das and Ghulam Hasan, JJ.) was not impressed by the appellant's interpretation of Section 497 as well as of Articles 14 and 15. His Lordship, like Chagla, C.J., relying heavily upon Article 15(3), held that Section 497 is a special provision made for women and therefore is saved by clause (3) of Article 159. To the argument that Article 15(3) should be confined only to provisions which are beneficial to women and should not be used to give them a licence to commit and abet a crime with impunity, the Apex Court responded:

"We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited."10

More than three decades after the Supreme Court's pronouncement in Yusuf Abdul Aziz case5, constitutional vires of Section 497 came to be reagitated in Sowmithri Vishnu v. Union of India5. It was contended that Section 497, being contrary to Article 14 of the Constitution, makes an irrational classification between women and men as it: (i) confers upon the husband the right to prosecute the adulterer but it does not confer a corresponding right upon the wife to prosecute the woman with whom her husband has committed adultery, (ii) does not confer any right on the wife to prosecute the husband who has committed adultery with another woman, and (iii) does not take in its ambit the cases where the husband has sexual relations with unmarried women, with the result that the husbands have a free licence under the law to have extramarital relationship with unmarried women.

The Supreme Court rejected these arguments and ruled that Section 497 does not offend either Article 14 or Article 15 of the Constitution. The Apex Court also brushed aside the argument that Section 497, in the changed social "transfor